Recently, Morrison & Foerster’s Drew S. Days, III, who served as Solicitor General of the United States from 1993 to 1996, shared his thoughts on a myriad of today’s hottest topics including: the Court in transition; Justice Sandra Day O’Connor; and China’s challenge in developing a legal structure to support economic growth.
Q: What do counsel need to know about a Supreme Court "in transition"?
A: First of all, this recent Term was already different given the lack of participation during some of the oral arguments by Chief Justice Rehnquist. We already see a different rhythm and dynamic to the Court, which will continue with the addition of a "rookie" Justice on the bench. The new Justice will need to get up to speed quickly with three significant antitrust cases and other important business cases scheduled to be heard right off the bat. The new Justice will be allowed to share law clerks to ease the "breaking in" period and will have to develop a personal style of questioning during oral argument, mindful of the convention that expects the newest member to wait until the more senior Justices have questioned lawyers during oral argument. What most people don’t realize is that an oral argument is, beginning to end, only 30 minutes per side (with very few exceptions). When a new Justice gives due deference to the senior Justices and then asks his or her questions, counsel can find themselves with a very limited amount of time to answer. Justice Breyer is famous for his early days on the bench because he would wait until the white light went on, signaling 5 minutes left, and then ask his well thought–out question. Counsel must be alert to this and other seemingly minor procedural features in order to argue effectively during the transition period.
Q: Do you have any favorite personal recollections of Justice Sandra Day O’Connor on the Court?
A little known part of Justice O’Connor’s legacy is her interest in foreign law and the Supreme Court’s role in reaching out to its counterparts in other countries. In the late 1980’s I spoke at a Duke Law School conference on Canadian versus U.S. constitutional law. In the audience was Canada’s entire Supreme Court and also in attendance was Justice O’Connor. When I asked Justice O’Connor where her U.S. colleagues from the Court were, she said that they did not plan to come and it was obvious that this disappointed her. She always kept up her interest in foreign law and in the 1990’s became actively involved in an ABA program designed to assist Eastern European countries formerly part of the Soviet Union in developing mechanisms for ensuring the independence and commitment to the rule of law of their post-Cold War judicial systems. On a lighter note, a fact little known outside the Supreme Court bar is that its public address system is so sensitive that if you are looking at your notes during oral argument it is difficult to identify from which end of the bench the question is coming. For several months after Justice Ginsburg joined Justice O’Connor as the second woman on the Court, lawyers arguing before the Court would often respond to questions from one but address it to the other. Finally, as an example of Justice O’Connor’s generous nature in tolerating the confusion created by the arrival of a sister Justice and her sense of humor, both she and Justice Ginsburg showed up at a Court social event wearing t-shirts that said, respectively, "I’m Sandra, not Ruth" and "I’m Ruth, not Sandra!"
Q: Speaking of International law, I understand you recently visited Morrison’s offices in China and participated in a conference. What were your observations of the government’s efforts to develop transparent legal systems? How will these efforts support economic growth in China and non-Chinese investment in-country?
A: I visited China as part of a conference on The Rule of Law & Judicial Review, which included the role of courts in Chinese society. Even before you consider the vast undertaking of creating a set of modern legal institutions, I was impressed with the development in basic infrastructure in Beijing since my last visit in 1987 before Tiananmen Square. At that time, what one noticed, in particular, were thousands of bicycles, which people deemed "efficient" modes of transportation in a society not needing to get anywhere quickly. Now, you see cars, super highways, and men everywhere wearing Western business suits rather than Mao jackets, a very cosmopolitan advance over what once was. Beijing wants to "catch-up" with the opportunities that have passed it by and you get the clear overarching impression that China wants to be a part of the world economy. What impressed me most in my discussions with senior government officials was the interest in an increased role of the courts in Chinese society. It is recognized that the National People’s Congress has not been doing enough to see to the orderly development of China’s judicial system. As a result, "gentle" encouragement for strengthening China’s judicial system is coming from various quarters – academics, public officials, and even judges themselves. The conference I attended was only one recent example of this trend. It has become abundantly clear to me that in order to stimulate in-country investment there is a need for greater predictability in court procedures and decisions, especially arbitral disputes in the commercial area. With U.S. and foreign companies making decisions every day to invest in China and, in turn, asking for investors’ trust, a transparent and efficient legal system will be the linchpin for significant economic change.